MILES v. DEPARTMENT OF JUSTICE et al

Filing 22

MEMORANDUM OPINION accompanying final order issued separately this day. Signed by Judge Amy Berman Jackson on 8/24/16.(ah)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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Plaintiff,
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v.
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DEPARTMENT OF JUSTICE, et al.,
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Defendants.
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____________________________________)
HARRY EDWIN MILES,

Civil Action No. 15-0581-ABJ

MEMORANDUM OPINION
On March 15, 2015, plaintiff, a federal prisoner proceeding pro se, mailed the instant
complaint to this Court, claiming that five components of the Department of Justice (“DOJ”) had
not responded to his February 10, 2015 request for records under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552. Compl. at 4-6. The components have since searched for records and
notified plaintiff that no responsive records were found. Pending before the Court is Defendants’
Motion for Summary Judgment under Fed. R. Civ. P. 56. [Dkt. # 18].
On November 2, 2015, plaintiff was informed by the Court that his opposition to
defendants’ motion was due by December 14, 2015, and citing Neal v. Kelly, 963 F. 2d 453, 456
(D.C. Cir 1992), the order warned of the consequences of a failure to respond [Dkt. # 19]. Plaintiff
has neither filed a response nor requested additional time to respond. Since the proffered
declarations establish that the components undertook reasonably adequate searches to locate
responsive records, the Court will grant summary judgment in favor of the defendants.

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I. BACKGROUND
On February 10, 2015, plaintiff mailed identical FOIA requests to the following individuals
or entities within DOJ: (1) the Office of Legislative Affairs, (2) the Main FOIA/PA Referral Unit,
(3) the FOIA/PA Administrator, (4) the Office of Solicitor General (OSG), and (5) the Bureau of
Prisons (BOP).

Compl. ¶ 10 and Attachments.

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DOJ “does not have a ‘FOIA/PA

Administrator,’” Stmt. of Material Facts (“Facts”) ¶ 4, and the FOIA/PA Mail Referral Unit
properly forwarded the request it received to BOP, id. ¶ 6. See id. ¶ 5 (The Mail Referral Unit
receives requests that do not “specify which [DOJ] component . . . would have the records that the
requester seeks” and directs such requests to the component likely to have responsive records.);
see also Ex. B to Defendants’ Motion, Declaration of Evie Sassok, [Dkt. 18-2], ¶ 2.
Plaintiff requested:
Hard (paper) copies of all investigations, correspondence, records, reports,
notes or files, regardless of the storage medium, regarding: H.R. 3190 and/or
Public Law 80-772 between your agency and the Director of the Federal
Bureau of Prisons from January 2008 through July 2009.
Facts ¶ 3. Defendants searched by terms likely to locate responsive records. See Facts ¶¶ 7, 1518 (Legis. Affairs/Off. of Info. Policy); ¶¶ 19-24 (OSG); ¶¶ 25-31 (BOP). Thereafter, OIP
provided a no-records response to plaintiff on March 19, 2015; BOP provided a no-records
response on March 31, 2015; and OSG provided a no-records response on April 8, 2015.

1

Although the actual requests are dated February 10, 2014, plaintiff alleges in the complaint
that he submitted the requests in February 2015, and he has not disputed defendants’ assertion
based on their receipt of the requests in February 2015 that “2014” is a typographical error. See
Defs’ Facts ¶ 2.
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II. LEGAL STANDARD
Summary judgment is appropriate when “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). In a FOIA action, the Court may award summary judgment solely on the information
provided in affidavits or declarations that describe “the justifications for nondisclosure with
reasonably specific detail, demonstrate that the information withheld logically falls within the
claimed exemption, and are not controverted by either contrary evidence in the record nor by
evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.
1981); see also Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973), cert. denied, 415 U.S. 977
(1974). An inadequate search may constitute an improper withholding under the FOIA. See
Maydak v. U.S. Dep’t. of Justice, 254 F. Supp. 2d 23, 44 (D.D.C. 2003). So, when no responsive
records are located, the agency prevails on summary judgment if it shows that it made “a good
faith effort to conduct a search for the requested records, using methods which can be reasonably
expected to produce the information requested.” Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68
(D.C. Cir. 1990).
III. ANALYSIS
Defendants have satisfied their burden to come forward with evidence establishing that
adequate searches were conducted by submitting the declarations of Vanessa R. Brinkman, Senior
Counsel in the Department of Justice Office of Information Policy [Dkt. 18-1]; Valerie Hall
Yancey, the Executive Officer and Freedom of Information Act Officer of the Office of Solicitor
General [Dkt. 18-3]; Kimberly Blow, a Government Information Specialist for the Office of the
General Counsel in the FOIA/PA section of the BOP [Dkt. 18-4]; Donna Hill, Executive Assistant
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for the Assistant Director of the Information, Policy, and Public Affairs Division of the BOP [Dkt.
18-5]; and Johnna M. Todd, another Government Information Specialist in the BOP FOIA/PA
Section. [Dkt. 18-6]. 2 Together, these declarants set forth facts sufficient to enable the Court to
conclude that the defendants made the necessary good faith effort, and that it was reasonable to
expect that the methods utilized would have produced the requested information. Plaintiff has not
in any way refuted defendants’ declarations, and he has not contested the no-records responses. 3

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Defendants have also submitted a declaration of a Senior Advisor to BOP, Thomas R. Kane,
who served as the Assistant Director of the Information, Policy and Public Affairs Division of the
BOP for over 20 years before he was appointed to serve as the BOP Deputy Director and
ultimately, Acting Director. He explains why the one email that may appear to fall within the scope
of plaintiff’s request was previously determined to be fraudulent, and both the email and the
memorandum detailing why it is not genuine were attached to his declaration and therefore,
provided to the plaintiff.
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Courts must “state on the record the reasons for granting or denying” a motion for summary
judgment.” Fed. R. Civ. P. 56(a). Under the terms of the Local Rules of this Court, when
resolving a motion for summary judgment, “the Court may assume that facts identified by the
moving party in its statement of material facts are admitted, unless such a fact is controverted in a
statement of genuine issues filed in opposition to the motion.” LCvR 7(h). The Court may
therefore treat defendants’ factual assertions in this case as admitted. See FDIC v. Bender, 127
F.3d 58, 68 (D.C. Cir. 1997) (“[I]t was not an abuse of discretion for the district court, pursuant to
[the predecessor to Local Rule 7(b) ], to treat the [movant's] motion for summary judgment as
conceded.”); see also Skrzypek v. FBI, No. 10–5430, 2011 WL 2618182 (D.C.Cir. June 21, 2011);
Giraldo v. U.S. Dep't of Justice, No. 02–5058, 2002 WL 1461787 (D.C. Cir. July 8, 2002). But
the Court’s ruling on the motion for summary judgment is not predicated solely on the plaintiff’s
failure to respond; an independent review of the sworn submissions in the record supplies grounds
for the conclusion that the searches were adequate.
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Accordingly, the Court concludes that the agency has satisfied its FOIA obligations and is
entitled to judgment as a matter of law. 4 A separate order accompanies this Memorandum
Opinion.

AMY BERMAN JACKSON
United States District Judge
DATE:

August 24, 2016

4

In the second and fourth causes set out in the complaint, plaintiff purports to bring claims under
the Administrative Procedure Act (“APA”) based on the same conduct underlying the FOIA claim.
Since the FOIA provides an adequate remedy for the relief sought, plaintiff’s APA claims are
dismissed as “barred.” Tereshchuk v. Bureau of Prisons, Dir., No. 14-5278, 2015 WL 4072055,
at *1 (D.C. Cir. June 29, 2015) (per curiam); see Ray v. Fed. Bureau of Prisons, 811 F. Supp. 2d
245, 249 (D.D.C. 2011), citing Johnson v. Executive Office for U.S. Attorneys, 310 F.3d 771, 777
(D.C. Cir. 2002) (“As a general rule, the FOIA is the exclusive remedy for obtaining improperly
withheld agency records.”).
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